Belden v. Commissioner

D. A. BELDEN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Belden v. Commissioner Docket No. 73173. United States Board of Tax Appeals 30 B.T.A. 601; 1934 BTA LEXIS 1300; May 1, 1934, Promulgated *1300 The petitioner did not sustain a deductible loss (1) upon the sale of real estate which he purchased and used for residential purposes, or (2) upon the sale of certain shares of stock where on the same day his wife repurchased the same number of shares of the same stock from the same broker at the same price with moneys furnished by the petitioner. H. B. McCawley, Esq., for the petitioner. B. M. Coon, Esq., and Bernard D. Daniels, Esq., for the respondent. SMITH *601 This proceeding involves a deficiency in income tax for the calendar year 1930 in the amount of $5,347.86. The petitioner alleges that in the determination of such deficiency the respondent erred in disallowing the deduction of a loss sustained on the sale of certain real estate, which the respondent classified as residential property, and in disallowing a loss sustained on the sale of certain shares of stock. FINDINGS OF FACT. In 1922 the petitioner purchased certain real estate, consisting of a main dwelling and several outhouses and about 27 acres of land, in North Andover, Massachusetts, for a consideration of $11,500. The petitioner was then engaged in sales and*1301 promotion work for a holding company of which he was president. The petitioner moved to Boston in 1912. He was married in 1915 and thereafter he and his wife lived in apartments in Boston until 1921. In the summer of that year he rented the property referred to above and took up his residence there. He purchased the property in October of that year. The main dwelling was a large frame house, containing 10 rooms. There was also a small cottage and a barn on the premises. During 1922 and 1923 the petitioner made improvements in the dwelling house, enlarging the rooms, putting in hardwood floors, and adding a modern bathroom. The cost of the improvements was $5,437.45. The barn was converted into a garage. The cottage was used as a chauffeur's residence. The petitioner and his wife occupied the premises as their residence until February 1, 1925, when they moved to St. Louis. The property was then offered and advertised for sale and in 1930 was sold for $5,000, less commissions of $459.73. The petitioner did not rent or offer to rent the premises after he moved to St. Louis. *602 On April 21, 1930, the petitioner purchased 4,000 shares of stock of the American*1302 Corporation at $10 per share. Soon thereafter he sold 200 shares of the stock to a friend. On December 23, 1930, the petitioner instructed his broker, I. M. Simon & Co., of St. Louis, Missouri, to sell the remaining 3,800 shares at the market. The stock was then quoted on the market at 3 1/4 and 3 5/8. The petitioner had discussed the matter with his wife and had told her that the company had "gone flat" and that he was going to sell the stock. The 3,800 shares were sold by I. M. Simon & Co. on December 24, 1930, at 3 5/8 per share, or a total of $13,775. Commissions on the sale were $190 and taxes $152. On the same day the petitioner's wife purchased 3,800 shares of the same stock from I. M. Simon & Co. at the same price. A day or two later she received a bill from I. M. Simon & Co. for the purchase price of the shares and the petitioner gave her a check for the exact amount. The petitioner's wife did not have sufficient funds of her own to pay for the stock and the petitioner objected to her selling or hypothecating her own securities to raise the necessary funds. In April and October 1931 the petitioner's wife received two dividends of $570 each on the aforementioned*1303 shares of stock, which dividends she gave to the petitioner. The petitioner's wife sold the shares recently for $408.50 and deposited the proceeds in her own bank account. OPINION. SMITH: The petitioner claims the deduction of a loss on the sale of the real estate under section 23(e)(2) of the Revenue Act of 1928 as a loss resulting from a transaction entered into for profit. Where a taxpayer acquires property with the intention of selling it at a profit, and where the purpose of making a profit is the predominating motive, even though he may have used the property as a residence, he is entitled to any loss sustained upon the sale thereof. ; ; ; . In his testimony the petitioner gave as his reasons for purchasing the property that he and his wife were "wanting to get out into the country;" and that "I was born in the corn fields of Illinois, and I wanted to get my feet on some ground of my own, again." He further testified that he knew that his residence in Boston was only temporary*1304 and that he had no desire to acquire a permanent residence there; that he thought, and was advised by the real estate agents who sold him the property, that he would be able to dispose of it at a profit; that it was his idea to sell off some of the property *603 for summer homes; and that he had continuously made efforts to interest his neighbors and friends in developing the property, but had been unable to do so. The petitioner's wife testified that she understood that their residence on the property in question was to be temporary in the sense that it would last only as long as the petitioner's work kept him in that vicinity. In our opinion that evidence does not overcome the presumption of correctness of the respondent's determination that the property was acquired by the petitioner primarily for residential purposes and not for the purpose of resale at a profit. See ; affd. ; ; ; *1305 ; ; The property was never converted into business property or used for income-producing purposes. Cf. ; ; . With respect to the deduction claimed on account of the loss on the sale of the shares of stock of the American Corporation, the respondent questions the bona fides of the alleged sale of the shares by the petitioner where the petitioner's wife on the same day reacquired from the same broker the same shares at the same price. The petitioner sought to prove that in so doing his wife acted independently and contrary to his advice, because of her own faith in the American Corporation and its president, and that there was no relationship between his sale of the stock and her purchase of it. It seems to us that other elements of the transaction weigh against this contention. The petitioner's wife did not have the necessary funds to purchase the shares of stock. *1306 The petitioner gave her a check for the exact amount as soon as the bill was presented by the brokers. In , we held that where the taxpayer offered through a securities auctioneer to dispose of certain stock which was purchased by a partnership of which her husband was a member, and immediately thereafter the amount paid to the auctioneer by the partnership as purchase price, less commissions, was deposited by the taxpayer to her account with the partnership, and a few months later the taxpayer reacquired the same number of shares from the partnership, the transaction did not constitute an actual sale resulting in a deductible loss, it not appearing that there was a mutual intention to transfer absolute ownership. Also, in , where a taxpayer instructed his broker to sell certain shares of stock and at the same time instructed the broker to purchase the same shares in the name of the taxpayer's wife, and instructed his bank to charge the purchase price to an account opened for that purpose in his wife's name with a check on his *604 own account, we held that the transaction did*1307 not constitute an actual sale resulting in a deductible loss to the taxpayer. See also , and . We are of the opinion that the facts in this proceeding bring the issue within the rule of the cases cited. The reasons for denying deductions for claimed losses in circumstances similar to those in the instant case were fully discussed in those cases. We hold accordingly that the petitioner did not sustain a deductible loss as alleged upon the sale of the shares of stock of the American Corporation. Judgment will be entered for the respondent.